a lawyer suspended for one year or more must prove by clear and convincing evidence that the lawyer has the moral qualifications, competency, and learning in law required for admission to practice and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice
How later courts described this case
- a lawyer suspended for one year or more must prove by clear and convincing evidence that the lawyer has the moral qualifications, competency, and learning in law required for admission to practice and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice
- recognizing an “objective of achieving uniformity of punishment in disciplinary proceedings”
- affirming four-year suspension of attorney who self-reported withdrawal of funds for personal use from estate administered by the attorney
- affirming a four-year suspension which was "only one year short of the maximum punishment of disbarment" and without a probationary period
Written by the judges who cited it.
The opinion
HARBISON, Chief Justice,
concurring in part and dissenting in part.
I concur in the conclusion reached by the majority that fixed or rigid rules for disciplinary sanctions are generally not practicable. Ordinarily all of the circumstances of each individual case must be considered, and I would be reluctant to impose a hard and fast rule that disbarment must follow in every case of embezzlement or defalcation by an attorney.
Nevertheless, there is hardly any misconduct less tolerable or excusable on the part of a lawyer than to embezzle funds of a client. In this case embezzlement took place on six different occasions over a period of more than three years, totalling $20,-789.46 out of a small estate which had gross assets of about $28,600.00. Of course, the appellee made partial restitution from time to time, but he testified that he could have made complete restitution long before he did and that he simply could not bring himself to do so “mentally.”
Appellee concealed his defalcations from the beneficiary of the estate, from the probate court and from his law firm. The last attempt which he made at restitution was in February 1986, nearly three years after his last embezzlement. He had the poor judgment to make this restitution out of his law firm’s trust account. While he reimbursed that account, his defalcation was obvious and would certainly have been exposed when one of the firm members called for an audit of the firm account. It was at that point, and only at that point, that appellee came forward to admit a course of embezzlement which by then had gone on for a period of nearly six years.
In my opinion, no mitigating circumstances have been shown in this case, and I think that disbarment is the appropriate punishment. As pointed out by the majority, the physical health of appellant urged as mitigation neither factually nor legally justifies leniency in this case. The fact that some restitution has been made might be an appropriate circumstance to consider if and when appellee should seek reinstatement to the practice of law; but, in my opinion, the attempts at restitution in this *572 case are not mitigating circumstances in view of the fact that the defalcations occurred on six separate and distinct occasions beginning on August 19, 1980, and extending through May 18, 1983. Appellee took these funds out of the estate for his personal use and deliberately failed to close this small, simple estate and make disbursement to the single beneficiary who was the only child of the intestate decedent. Only after the enraged and embittered beneficiary angrily called appellee’s partner did the defalcations come to light. Appellee was allowed a fee and expenses of nearly one-fourth of this small estate, and he has not yet made restitution of that fee, although he has agreed to do so, at some future date.
I realize that the difference between four years’ suspension and the five years attendant upon permanent disbarment is only a matter of degree. Further, I recognize that there is no right of reinstatement whatever after a suspension of either four or five years. Complete restitution, including attorney’s fees and interest, has appropriately been made a condition of any effort at reinstatement which appellee may attempt. Nevertheless, deliberate, unexcused embezzlement of client funds is one of the most serious offenses of which a licensed attorney can be guilty. The misconduct shown in this case, in my opinion, disgraces the legal profession and calls for permanent disbarment.